Ellen T. Berge

Latest Articles

The Federal Trade Commission suffered a significant blow yesterday. In a decision that many saw coming—bloggers here included—the Third Circuit curtailed authority the FTC has been using for decades to confront allegedly unlawful past conduct. The decision has a direct impact on the ability of the FTC to obtain injunctions against defendants for alleged past misdeeds. In its ruling, the Third Circuit held that the FTC can only go directly into federal court where it…
In June 2017, the FTC initiated a regulatory rule review of the Controlling the Assault of Non-Solicited Pornography and Marketing Rule (“CAN-SPAM Rule” or “Rule”), seeking information about the Rule’s costs and benefits as well as its economic and regulatory impact. The FTC received 92 responses to its request for public comment. Last week, the FTC announced it had completed its review of the Rule and public comments it received, and decided to keep the…
Several high profile bankruptcies have occurred in recent years. Most would consider a bankruptcy proceeding a last resort. But some, seeking to expunge a debt, have contemplated that bankruptcy may be a safe way to avoid the long-arm of the law. The Federal Trade Commission, however, has taken great steps to ensure that an FTC judgment firmly stays on a wrongdoer’s balance sheet. In late December of last year, the FTC convinced a bankruptcy court
Everyone thinks that when the federal government shuts down, nothing happens in Washington. Not true. Last week, following in the footsteps of other states, the District of Columbia passed a new law regulating automatic renewal offers. The law affects all companies that sell goods or services pursuant to a contract that automatically renews at the end of a definite term. Although the law mirrors other states’ laws in some respects, it creates much stricter requirements…
As 2019 goes into full swing, it’s important for providers of payment processing services (referred to here as “acquirers”) and their merchants or submerchants to prepare for the various regulatory and industry changes coming this year. One such significant change comes in the form of Mastercard’s updated rules for negative option billing programs. Set to take effect on April 12, 2019, Mastercard’s new rules will tighten consumer protection requirements for negative option merchants and their…
Signed into law on December 20, 2018, the 2018 Farm Bill may present a tremendous opportunity for banks and payments companies to provide banking, processing, and other services to the hemp industry. We expect a variety of companies to move swiftly in developing, marketing, and selling products (including CBD oil) that, until yesterday, were controlled substances. This means that banks and payment processors should be prepared for a flood of inquiries from the industry about…
My kids watch a lot of YouTube videos, ranging in topics from taking an alligator to the vet to the world’s longest walk on Legos. They have their favorites – YouTubers under the names LoserFruit and Dude Perfect come to mind. I have caught my daughter practicing for her own channel about making slime. Those aspirations had me thinking about the career path of being an “influencer.” Indeed, trickshot stars and video game aficionados have…
In recognition of a rapidly changing ecommerce environment, Visa has created a new category of payment aggregator – a “marketplace” – for entities that bring “together Cardholders and retailers on an electronic commerce website or mobile application.” The new marketplace designation will have an immediate impact in the ecommerce market by clarifying the status and requirements applicable to ecommerce sites looking to add payment processing services to their platforms. While this model is likely to…
We wrote previously that for payment processors the death of Operation Choke Point was greatly exaggerated.  We also noted that a prior challenge to the FTC’s ability to impose joint and several liability on an executive for his former employer’s actions had failed. A recent appellate victory for the FTC reinforces both these points.  In FTC v. Universal Processing Services, 11th Circuit affirmed the district court’s imposition of joint and several liability…
Continuity, or “negative option,” marketing is a popular and convenient way for consumers to subscribe to products and/or services, receive new issues, receive product replenishment, or continue a service by making automatic payments at predetermined times. From skincare to dietary supplements, to groceries and periodicals, the popularity of continuity-based marketing with consumers is soaring. However, a proposed amendment to Section 17602 of the California Business and Professions Code that passed the California State Senate and…